Madras High Court
Amudha vs The Secretary To The Government on 6 August, 2014
Author: S.Rajeswaran
Bench: S.Rajeswaran, P.N.Prakash
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.08.2014
CORAM
THE HONOURABLE MR.JUSTICE S.RAJESWARAN
and
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
H.C.P.No.530 of 2014
Amudha .. Petitioner
Vs.
1.The Secretary to the Government
Home, Prohibition & Excise Department
Fort St. George, Chennai 600 009.
2.The Commissioner of Police,
Greater Chennai,
Vepery, Chennai 600 007. .. Respondents
Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the records in connection with the order of detention passed by the second respondent dated 12.12.2013 in BDFGISSV No.1902/2013 against the petitioner's son the detenue herein, now confined at Central Prison, Puzhal, chennai and set aside the same and direct the respondents to produce the detenue Thiru Murugan, son of Arumugam, aged 23 years before this Court and set him at liberty.
For Petitioner : Mr.A.Nirmal Kumar
For Respondents : Mr.P.Govindarajan,APP
ORDER
[Order of the Court was made by S.RAJESWARAN, J.] Challenge is made to the order of detention passed by the second respondent vide Proceedings in BDFGISSV No.1902/2013 dated 12.12.2013, whereby the son of the petitioner, viz., Thiru.Murugan, son of Arumugam, aged 23 years, was ordered to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "GOONDA".
2. As per the grounds of detention dated 12.12.2013, passed by the second respondent, the detenu came to adverse notice in the following cases:
i)Adverse case:
Sl No. Name of the Police station and Crime No. Section of law 1 J.3 Guindy Police Station, Cr.No.1685/2011 457 and 380 IPC 2 P.3 Vysarpadi Police Station, Cr.No.616/2011 379 IPC 3 P.5 MKB Nagar Police Station Cr.No.2983/2012 380 IPC 4 F.1 Chindadripet Police Station Cr.No.1172/2013 341 & 392 IPC
(ii) Ground Case:
Sl No. Name of the Police station and Crime No. Section of law 1 F.1 Chindadripet Police Station, Cr.No.1199/2013 341, 336, 427, 397 and 506(ii) IPC
3.Though many grounds have been raised in the petition, Mr.A.Nirmal Kumar, the learned counsel appearing for the petitioner, confines his argument only in respect of non-application of mind on the part of the detaining authority in passing the order of detention.
4. According to the learned counsel appearing for the petitioner, the detenu has been in remand in the ground case in Cr.No.1199/2013 and in the 4th adverse case in Cr.No.1172/2013 registered by the F.1 Chindadripet Police Station, and the bail application filed by the detenu in the 4th adverse case before the learned 14th Metropolitan Magistrate, Egmore, Chennai, in MP.No.10505/2013 was pending and the detenu has not moved any bail application in the ground case as on the date of the passing of the detention order. He would also contend that the detaining authority has placed reliance on the statement of the sponsoring authority to the effect that the relatives of the detenu are taking steps to take him out on bail by filing bail application in the ground case. He adds that the Detaining Authority has not made any mention about the 1st, 2nd and 3rd adverse cases [Cr.Nos.1685/2011, 616/2011 and 2983/2012] registered by J.3 Guindy Police Station, P.3 Vysarpadi Police Station, P.5 M.K.B Nagar Police station respectively, in which cases, the detenu is in remand and has not stated whether the detenu has filed any bail applications in the said adverse cases or whether he has been granted bail in those cases. The learned counsel would add that admittedly, in this case, the detenu has not moved any bail application in the ground case and the bail application filed in the 4th adverse case was pending and he is in remand in the said cases. When no bail application is filed, there is no real possibility of the detenu coming out on bail and when a bail application is pending, then there is no presumption that the detenu would come out on bail. No cogent materials are available before the Detaining Authority to conclude / to apprehend that the detenu is likely to get bail in the ground case as well as in the adverse cases and there is imminent possibility of the detenu coming out on bail in the said cases. The apprehension entertained in the mind of the detaining authority that there is a real possibility of detenu coming out on bail as the bail application filed in the 4th adverse case is pending is not justifiable for the reason that he has pre-judged the matter. Concedingly he could not foresee the nature of the order that would be passed by the Court. By the reason of pendency of the application, one could not easily come to the conclusion that the Court would certainly grant bail to the accused. Hence, it is stated that the Detaining Authority has passed the impugned detention order in total non-application of mind and the subjective satisfaction arrived at by the Detaining Authority that there is real possibility of the detenu coming out on bail in the adverse cases and that there is a likelihood of his coming out on bail in the ground case is a mere ipse dixit without any cogent materials. In support of his contention, he relies on the judgments of the Hon'ble Apex Court reported in [a] 2006 [1] MLJ [Crl.] 539, [T.V.SARAVANAN @ S.A.R.PRASANNA VENKATACHARIAR CHATURVEDI V. STATE OF TAMILNADU THROUGH SECRETARY AND ANOTHER] ; [b]2005 [1] CTC 577 [VELMURUGAN @ VELU Vs. THE COMMISSIONER OF POLICE] ; [c] 2012 [7] SCC 181 [HUIDROM KONUNGJAO SINGH VS. STATE OF MANIPUR] and [d] 2008 [3] MLJ (Crl.) 144 [S.ANDAL VS. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, MADURAI DISTRICT, MADURAI AND ANOTHER].
5.Per contra, the learned Additional Public Prosecutor would submit that the order of detention has been passed on cogent and sufficient materials and the same cannot be interfered with at the instance of the petitioner. Therefore, he submits that the Habeas Corpus Petition does not merit any consideration and the same is liable to be dismissed.
6.We have heard the learned counsel for both sides with regard to the facts and citation.
7.Before adverting to the arguments of the counsel for both sides, we would like to reproduce the relevant portion of the grounds of the detention order, viz., paragraph 4, on which much reliance has been placed by the learned counsel appearing for the petitioner:
4.I am aware that Thiru Murugan is in remand in F.1 Chindadripet Police Station Cr.Nos.1172/2013 and 1199/2013 he moved a bail application in F.1 Chindadripet Police Station, Cr.No.1172/2013 before the 14th Metropolitan Magistrate Court, Egmore, Chennai in M.P.No.10505/2013 and the same is pending. The sponsoring authority has stated that the relatives of Thiru Murugan are taking action to take him on bail by filing bail application F.1 Chindadripet Police Station Cr.No.1199/2013 by filing bail application before the Court. Similarly, in a case registered at D.1 Triplicane Police Station Cr.No.37/2013 under Sections 341, 392 bail was granted by the 13th Metropolitan Magistrate Court, Egmore, Chennai in Crl.M.P.No.982-A. Similarly, in a cse registered at D.1 Triplicane Police station Cr.No.752/2013 registered under Sections 341, 294(b), 336, 427, 397 and 506(ii) IPC bail was granted by the Court of Principal Sessions Judge in Crl.M.P.No.6863/2013. Hence, I infer that it is very likely of his coming out on bail in F.1 Chindadripet Police Station Cr.No.1172/2013 and there is real possibility of his coming out on bail in F.1 Chindadripet Police Station Cr.No.1199/2013 by filing bail application before the court, since in similar cases bails are granted by the Courts after a lapse of time. If he comes out on bail, he will indulge in further activities, which will be prejudicial to the maintenance of public order..................
8.As could be seen from the above ground in the order of detention, the detenu is in remand in the ground case [Cr.No.1199/2013] and in the 4th adverse case [Cr.No.1172/2013] and he has not filed any bail application in the said ground case and the bail application filed by the detenu in the 4th adverse case in MP.No.10505/2013 before the learned 14th Metropolitan Magistrate, Saidapet, Chennai, was pending as on the date of passing of the detention order. Merely stating that steps have been taken on behalf of the detenu by the relatives of the detenu to file bail application in the ground case is not sufficient to pass an order of detention. Excepting recording a statement that the relatives of the detenu are taking steps to file bail application, no other material are shown as to the steps taken to file bail applications in the ground case. When a bail application is pending, then there is no presumption that the detenu would come out on bail and when no bail application is filed, there is no imminent possibility of the detenu coming out on bail. Further, as evidenced from the Grounds of detention, the detenu is in remand in 1st, 2nd and 3rd adverse cases; but the Detaining Authority has not mentioned whether the detenu has filed any bail applications in the said adverse cases or whether the detenu has been granted bail in those cases. Therefore, the subjective satisfaction arrived at by the detaining authority that there is real possibility of his coming out on bail in the ground case and that there is likelihood of his coming out on bail in the 4th adverse case would be a mere ipse dixit and that would vitiate the order of detention and the same is indicative of total non-application of mind on the part of the Detaining Authority. As rightly contended by the learned counsel appearing for the petitioner the pendency of the bail application would not certainly enable the detaining authority to conclude that the Court would certainly grant bail to the accused. It is nothing but pre-judging the matter. Therefore on this ground also the impugned order is liable to be set aside. Hence, the order of detention cannot be sustained in the eye of law and the same is liable to be set aside.
9.In this connection it is useful to refer the judgment of the Hon'ble Apex Court relied on by the learned counsel for the petitioner.
[a]In 2006 [1] MLJ [Crl.] 539, [T.V.SARAVANAN @ S.A.R.PRASANNA VENKATACHARIAR CHATURVEDI V. STATE OF TAMILNADU THROUGH SECRETARY AND ANOTHER] , wherein the Hon'ble Apex Court has held as follows:
"The Courts had rejected the bail applications moved by the appellant and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. The "imminent possibility" of the appellant coming out on bail is mere ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail. The inference has to be drawn from the available material on record, in the absence of such material on record, the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention."
[b]In 2005 (1) CTC 577 (Velmurugan @ Velu vs. The Commissioner of Police), it has been held as follows:
"3.......unless there is a clear expression by the detaining authority in the grounds of detention with reference to the imminent possibility of the detenu being released on bail by filing bail application, the detaining authority would not choose to pass the detention order. In order to prevent the detenu from committing the acts, which would be disturbance to public order and public health, the detaining authority shall consider the materials and on the basis of subjective satisfaction that there is imminent possibility of the detenu coming out on bail or likelihood of the detenu being released on bail, the detaining authority may pass such an order under Tamil Nadu Act 14 of 1982. When such an essential requirement, namely, the imminent possibility of the detenu coming out on bail, is absent, it has to be held that the order of detention is vitiated."
[c]In 2012 [7] SCC 181 [cited supra] which reads thus:-
12. In Rekha v. State of Tamil Nadu through Secretary to Govt. & Anr., (2011) 5 SCC 244, this Court while dealing with the issue held :
........ A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground.
14......... Thus, as the detenu in the instant case has not moved the bail application and no other co- accused, if any, had been enlarged on bail, resorting to the provisions of Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustained in the eyes of law."
[d]In 2008 [3] MLJ (Crl.) 144 [S.ANDAL VS. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, MADURAI DISTRICT, MADURAI AND ANOTHER], it has been held as follows:
"Where a bail application filed by the detenu was pending before the Court and the Detaining Authority coming to the conclusion that there was a real possibility of the detenu coming out on bail, even prior to the passing of an order on bail application, held the detention order was passed without proper application of mind, rendering it vitiated."
10.It is a trite law that personal liberty protected under Article 21 is so sacrosanct and so high in the scale of Constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Preventive detention is preventive and not punitive. When ordinary law of the land is sufficient to deal with, taking recourse to the preventive detention law is illegal.
11.In the light of the above facts and law, we have no hesitation in quashing the order of detention on the above mentioned grounds.
12. Accordingly, the Habeas Corpus Petition is allowed and the impugned detention order in BDFGISSV No.1902/2013 dated 12.12.2013 passed by the second respondent is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case.
(S.R.,J.) (P.N.P.,J.) 06.08.2014 jbm To
1.The Secretary to the Government Home, Prohibition & Excise Department Fort St. George, Chennai 600 009.
2.The Commissioner of Police, Greater Chennai, Vepery, Chennai 600 007.
3.The Public Prosecutor, High Court, Madras.
S.RAJESWARAN,J.
AND P.N.PRAKASH, J.
jbm H.C.P.No.530 of 2014 06.08.2014